Tuesday round-up

Posted Tue, May 31st, 2011 8:10 am by Nabiha Syed

Returning from the Memorial Day holiday, the Court is expected to issue one or more opinions this morning, as well as orders from its May 26 Conference; our list of "Petitions to Watch" for that Conference is available here. Over the weekend, coverage centered on two cases decided last week: Chamber of Commerce v. Whiting andBrown v. Plata.

In Brown v. Plata, a divided Court affirmed a three-judge district court"™s ruling that overcrowding in California prisons is the primary cause of continuing violations of prisoners"™ constitutional rights to health care, requiring a reduction in the state"™s prison population.

Some commentators, such as Debra Saunders at the San Francisco Chronicle, have echoed the concerns expressed by Justices Alito and Scalia in their dissents "“ that the decision will lead to the mass release of prisoners and an increase in crime. But Jeanne Woodford (a former California prison warden) and Barry Krisberg, in an op-ed for the Los Angeles Times, insist that "Californians shouldn"™t panic," arguing that "the state won’t have to throw open the prison doors to meet the court’s order if it embraces very modest sentencing reforms."

Other articles and commentators have focused on the effect that the Court"™s decision might have on California"™s prison and criminal justice systems. At the Christian Science Monitor, Daniel Wood explores Governor Brown"™s options for prison reform, which depend on voter support and funding. Shima Baradaran criticizes Governor Brown"™s current proposal to shift prisoners to county jails, arguing in a New York Times op-ed that a "more lasting solution to overcrowding" would involve "reform [of] the rules governing pretrial detention." And in the San Diego Union-Tribune, Dana Littlefield reports that the decision "could boost efforts to modify or repeal the state"™s three-strikes law, which some say keeps nonviolent offenders in prison for far too long." Elsewhere, opinion columnist Mary Sanchez of the Kansas City Star (via the Miami Herald) warns that "no state is free of the mentality that led California to this juncture."

Still other commentators focused on Justice Kennedy"™s role as the author of the decision: Dan Morain of the Sacramento Bee notes that the court-appointed receiver who oversees the health-care system in California prisons is a former clerk to the Justice, while Bloomberg View columnist Noah Feldman explains why he believes that "it"™s Justice Anthony Kennedy"™s country "“ the rest of us just live in it."

The other major decision from last week was Chamber of Commerce v. Whiting. In that case, by a vote of (mostly) five to three, the Court rejected a challenge to Arizona immigration laws that seek to curb the employment of unauthorized immigrants. The Arizona Republic summarizes the decision, reports on various responses to the ruling, and considers what effect the Court"™s ruling may have on the other controversial Arizona immigration law, S.B. 1070. In a news analysis for the New York Times, Julia Preston describes the decision as an "energy boost" for other states with proposed bills to curb illegal immigration, but she concludes that it "remains unclear just how large the playing field is that the Supreme Court has opened"; on that note, the Salt Lake Tribune reports that on Friday a lawmaker proposed a Utah version of the Arizona law requiring employers to use of a federal electronic employment-verification system, also known as E-Verify. The editorial board of the Washington Post argues that the case "sends the message that states will act in the face of federal paralysis and that the Supreme Court is prepared to embrace at least some of those efforts." Writing for the Legal Pulse of the Washington Legal Foundation, Richard Samp sees the case as "serv[ing] notice that it [the Supreme Court] is watching DOJ legal filings for potential inconsistencies on preemption issues."

- In his Sidebar column for the New York Times, Adam Liptak explains why Justice Stevens is "more active than ever."

- The Associated Press reports on the Justices"™ recent financial disclosure forms, which reveal that Justice Sotomayor received almost $1.2 million as an advance for her memoir; according to Greg Stohr of Bloomberg, the forms also show that Justice Breyer sold his Wal-Mart shares last year.

- Justice and Mrs. Alito attended yesterday"™s game between the Philadelphia Phillies and the Washington Nationals game, reports Howard Bashman of How Appealing.

- At Concurring Opinions, Thomas Crocker considers Justice Alito"™s use of the term "privacy" in his opinion for the Court in Kentucky v. King.

- The editorial board of the Los Angeles Times praises Acting Solicitor General Neal Katyal for his recent acknowledgement former Solicitor General Charles Fahy should not have withheld information from the Supreme Court regarding the internment of Japanese Americans during World War II.

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Department of Commerce v. New YorkThe secretary of the Department of Commerce did not violate the enumeration clause or the Census Act in deciding to reinstate a citizenship question on the 2020 census questionnaire, but the district court was warranted in remanding the case back to the agency where the evidence tells a story that does not match the secretary’s explanation for his decision.